Vermeulen and Nagle (Child support)

[2019] AATA 5512

Vermeulen and Nagle (Child support) [2019] AATA 5512 (19 November 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC017072

APPLICANT:  Mr Vermeulen

OTHER PARTIES:  Child Support Registrar

Ms Nagle

TRIBUNAL:Member W Budiselik

DECISION DATE:  19 November 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – fixed annual rate – whether current income is below rate of PP single payment – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Mr Vermeulen (the applicant) and Ms Nagle (the mother) are the parents of [Child 1] (born January 2002) and [Child 2] (born December 2003).

2. On 2 July 2019, an objections officer from the Department Human Services Child Support (the department) made a decision to allow an objection to a decision made by an officer of the department on 22 October 2018 to not apply the fixed annual rate of child support from 22 October 2018. The objections officer decided to apply the fixed annual rate of child support from 22 October 2018.

3. On 2 August 2019, the applicant lodged an application for a review of the department’s decision with the Administrative Appeals Tribunal (the tribunal). On 11 November 2019, the tribunal conducted a hearing into the application. Prior to the hearing, the department provided the tribunal and the applicant with a bundle of documents taken from its files (folios 1–205). In addition the applicant provided documents (folios A1–A26), which have been provided to the department.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The triggers for assessment at the fixed annual rate of child support are contained in section 65A of the Act. A person may then apply for the fixed annual rate not to apply under section 65B of the Act.

3. Subsection 65B(2) of the Act provides as follows:

   (2) The parent making the application must provide evidence to the Registrar concerning the parent’s income (within the meaning of subsection 66A(4)) to demonstrate that his or her current income is:

   (a) less than the pension PP (single) maximum basic amount; and

   (b) that it would be unjust and inequitable to expect him or her to pay the amount assessed under this section.

CONSIDERATION

Issue a): Is the applicant’s income less than the pension PP (single) maximum basic amount?

1. The pension PP (single) maximum basic amount is $19,568 (the required amount). Subsection 66A(4) of the Act defines that income in relation to a person means:

   (a) any money earned, derived or received by the parent for his or her own use or benefit, other than money earned, derived or received in a manner, or from a source, prescribed by the regulations for the purposes of this paragraph; or

   (b) a periodical payment by way of a gift or allowance, other than a payment of a kind prescribed by the regulations for the purposes of this paragraph.

2. Paragraph 65B(2)(a) of the Act provides the applicant is to provide evidence to demonstrate his income is less than the required amount.

3. It is not in dispute that the applicant was a sole trader and had two businesses registered in his name. [Company] from 22 July 2017 and [Business] which the applicant advised the department operated from March 2018 to September 2018 and the department recorded ceased on 13 June 2019. The applicant said he had a heart attack in April 2018.

4. In his written application the applicant set out:

   ·His income had been assessed by the department on the basis of turnover and not on profit.

5. At hearing, the applicant repeated his assertion that the department’s analysis of his income did not account for his business costs, and that his income was $0.

6. The tribunal noted that when the applicant talked of his business venture he talked in the plural. When the tribunal further queried him about this he said while the business was operated as a sole trader, he and his wife were both involved in the businesses.

7. The tribunal asked the applicant where he got the capital to start his business. The applicant said his wife had taken out a $20,000 loan to enable him to commence the businesses.

8. The applicant talked about his finances in generalities only. The applicant provided financial statements that had no probative value.

9. The applicant’s Statement of Financial Circumstances set out his outgoings exceeded his income. Elsewhere he stated he is supported by his wife. The tribunal noted the applicant identified in his Statement of Financial Circumstances that he had a loan of $13,500 for 50% of a vehicle. The tribunal presumed the applicant must have completed loan documents indicating he had the ability to repay the loan made to him.

10. The applicant said he had been recently granted newstart allowance (at a reduced rate because of his wife’s income) and that he has lodged an application for disability support pension.

11. On 27 June 2019, the applicant provided the department with bank statements. The tribunal examined the [Bank] Account for the period 19 October 2018 to 19 February 2010. This statement reflected that in this period there were deposits made into it from various sources, including deposits from his wife’s accounts (account numbers 625 and 566) on 19 October 2018 ($200), 1 November 2018 ($100), 19 November 2018 ($26), 3 December 2018 ($264), 13 December 2018 ($647), 28 December 2018 ($986), 2 January 2019 ($133), 8 January 2019 ($626), 10 January 2019 ($45), 12 January 2019 ($10), 23 January 2019 ($681), 1 February 2019 ($39), 5 February 2019 ($640), 6 February 2019 ($50), 7 February 2019 ($19.98) and 19 February 2019 ($482.50).

12. Given the deposits the applicant received into his account, the tribunal is not satisfied the applicant demonstrated his income is less than the required amount in the period from 22 October 2018.

Issue b): Would it be unjust and inequitable to expect the applicant to pay the fixed annual rate?

1. If the applicant was able to demonstrate his income is less than the requisite amount to determine the fixed annual rate of child support does not apply, the applicant also needs to demonstrate to the tribunal that it would be unjust and inequitable to expect him to pay the amount assessed under this section (paragraph 65B(2)(b) of the Act).

2. The mother provided a letter to the department which set out that she had generally borne the cost of the children; that the younger child had a medical condition which incurred extra costs and the elder child has been in a residential treatment setting because of her depression and self‑harming behaviour.

3. The applicant did not demonstrate in the context of his circumstances and the children’s circumstances why it would be unjust and inequitable for him to pay the fixed annual rate of child support.

4. The tribunal notes it is open to either parent to seek a change of assessment based on either of the children’s special needs.

DECISION

The decision under review is affirmed.